Mental health, mental illness, and human rights in India and elsewhere: What are we aiming for?

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Brendan D KellyDOI:10.4103/0019-5545.196822 PMID:28216765

The Mental Health Care Bill 2013 was introduced to the Rajya Sabha (India's upper house of parliament) in August 2013 and following 134 official amendments, passed in August 2016. Properly implemented, mental health legislation such as this plays a key role in protecting the rights of the mentally ill, ensuring access to care, and promoting social justice for the mentally ill, their families and carers. In this context, the 2006 United Nations' Convention on the Rights of Persons with Disabilities (CRPD) presents a real opportunity to improve the position of people with disabilities and those disabled by long-term mental illness. The CRPD also presents many challenges to mental health legislators and service-providers, especially in relation to involuntary care, mental capacity, and substitute decision-making. Nevertheless, the CRPD has still generated strong incentive for reform and is an opportunity that should not be missed. Legislation along the lines of India's 2013 Bill offers much that is positive and progressive in terms of standards of care, revised processes for involuntary admission, and enhanced governance throughout mental health services. In this way, this kind of legislation, although imperfect in certain respects, promotes the principles of the CRPD (as outlined in the preamble to India's 2013 Bill). It is important that such initiatives focus not only on the right to liberty but also on rights to treatment, social care, social inclusion, and political empowerment of the mentally ill. Globally, the mentally ill have been neglected for far, far too long. It is time to fix this.

Forensic psychiatry is a subspecialty of psychiatry, in which scientific and clinical expertise is applied to legal issues in legal contexts embracing civil, criminal, correctional, or legislative matters. Forensic psychiatry is still in an infant stage in India and other developing countries. Law is the sanctioning discipline, and Psychiatry is the therapeutic discipline. Due to various reasons, Forensic Psychiatry is reared as Cinderella in our country; "which is much neglected, ignored, misinterpreted, and misunderstood. Legislation forms an integral component in the implementation of Mental Health Care; there is a dynamic relationship between the concept of mental illness, treatment of the mentally ill, and the law. Mental Health legislation is essential in protecting the rights and dignity of persons with Mental Disorders and for implementing effectively the mental health services. "Effective mental health legislation can provide a legal frame work to integrate mental health services in the community as to overcome stigma, discrimination, and exclusion of mentally ill persons. Legislations can also create enforceable standards for high quality medical care and improve access to care and protect civil, political, social, and economic rights of the mentally ill individual, including right to access to education, employment, housing, and social security."

Human rights and mental health care of vulnerable population need supportive legislations and policies. Both "hard" and "soft" laws relevant to mental health care have been devised internationally and locally. Amendments in laws and the formulation of new laws are often required and have been seen to occur in the area of mental health care in India. So far, reform in mental health care has largely been reactive, but newer legislations and policies carry the hope of proactive reform. The lack of trained human resources is one of the biggest problems in effective mental health care delivery in India. While postgraduate psychiatric guidelines recommend a 2-week training in forensic psychiatry, this is insufficient to develop the necessary competence in the area. There is, thus, a need to develop subspecialty of forensic psychiatry. Forensic psychiatric services also need to be developed, properly structured, and supported. There is a need to set up one or more centers of excellence in forensic psychiatry in India.

The legal concept of competence to stand trial has ancient roots. The history of this legal construct in Anglo-Saxon law will be reviewed. A competent defendant is a requirement of the criminal justice system because it reflects interests related to the dignity of the process, the accuracy of adjudication, and respect for the autonomy of defendants. In the United States, legal decisions have established the contours of the requirements related to competent participation in adjudication. Forensic psychiatrists have operationalized the requirements for assessment purposes. Recent decisions in the United States have expanded earlier notions of competence to include decision-making during the course of adjudication. These decisions will be reviewed. The process of clinical evaluation, the use of collateral information, and other aspects of expert opinion formation will be reviewed. In addition, the special problems posed by amnesia, pro se defendants, competence to plead insanity, and unrestorable defendants will be discussed. The use of standardized assessment tools will also be reviewed. The application to the Indian criminal justice system will be discussed.

For the past 150 years, there is no change in the understanding and knowledge other than autonomy and capacity to choose the right and wrong for criminal liability. The alternative concept that human behavior is the result of an interaction between biological and environmental factors other than free choice failed to impress the criminal justice system because of a direct threat to a society's deep seated need to blame someone than themselves for criminal harms that occur. The insanity defense has a long history, and is evolved after many tests that have been tried and tested. McNaughton's rules stressed on "understandability of right and wrong" and "intellectual" rather than a moral or affective definition dominated in its formulation. Lack of control and irresistible drives or impulses were neglected
Going by the current understanding of neurological evidences of compulsion and lack of impulse control, rationality tests without the inclusion of lack of control, seem to be outdated. Separate "Control determination" than the "Rationality determination" by the jurors may improve the accuracy of Juror's categorizations. There is a suggestion that Relevance ratio is ideal for 'Evidentiary relevance" and there should be a quality control on expert testimonies. With progress in neuroscience, the law may need to abandon or alter some of its current assumptions about the nature of voluntary conduct, which underlies various defenses

In the United States the Accreditation Council of Graduate Medical Education determines the curriculum required for fellows in forensic psychiatry to become board certified as a subspecialist. Areas that must be covered during the one year fellowship include criminal issues, such as insanity; civil issues, such as tort law and Workers' Compensation; legal regulation of psychiatry, such as confidentiality and involuntary hospitalization; and correctional psychiatry issues, such as dual agency and prisoner's rights. Fellows are also expected to have knowledge about juvenile courts, the structure of the legal system, and child custody issues. In addition, fellows are required to analyze complex cases and write forensic reports which are well reasoned. Teaching methods include lectures, storytelling, use of video vignettes, and mock trials. Additional teaching methodologies include group supervision of fellows in their report writing and direct observation of giving testimony. During the year we see fellows evolve and shift their orientation from being an advocate for patients to perceiving their role as serving justice.

Objectives: The objective of this study was to assess attitudes of Indian psychiatrists and caregivers toward coercion.
Materials and Methods: The study was conducted at the Department of Psychiatry, Krishna Rajendra Hospital, Mysore, India. Staff Attitude to Coercion Scale (SACS), a 15-item questionnaire, was administered to self-selected psychiatrists across India and caregivers from Mysore to measure attitudes on coercion. Data were analyzed using descriptive statistics and investigating differences in subgroups by means of Chi-square test, Student's t-test, and analysis of variance. Reliability of the SACS was tested in this Indian sample.
Results: A total of 210 psychiatrists and 210 caregivers participated in the study. Both groups agreed that coercion was related to scarce resources, security concerns, and harm reduction. Both groups agreed that coercion is necessary, but not as treatment. Older caregivers and male experienced psychiatrists considered coercion related to scarce resources to violate patient integrity. All participants considered coercion necessary for protection in dangerous situations. Professionals and caregivers significantly disagreed on most items. The reliability of the SACS was reasonable to good among the psychiatrists group, but not in the caregiver group (alpha 0.58 vs. 0.07).
Conclusion: Caregivers and psychiatrists felt that the lack of resources is one of the reasons for coercion. Furthermore, they felt that the need on early identification of aggressive behavior, interventions to reduce aggressiveness, empowering patients, improving hospital resources, staff training in verbal de-escalation techniques is essential. There is an urgent need in the standardized operating procedure in the use of coercive measure in Indian mental health setting.